STATE v. DAWSON

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz.R.Sup.Ct. 111(c); ARCAP 28(c); Ariz.R.Crim.P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. ARTERIA DAWSON, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 11/20/2012 RUTH A. WILLINGHAM, CLERK BY: sls No. 1 CA-CR 12-0322 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2005-031934-002 SE The Honorable J. Justin McGuire, Judge Pro Tempore AFFIRMED Thomas C. Horne, Attorney General by Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Division Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender by Paul J. Prato, Deputy Public Defender Attorneys for Appellant Phoenix T H U M M A, Judge ¶1 This appeal is filed in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for defendant Arteria Dawson asks this court to search the record for fundamental error. After reviewing the record, Dawson s probation revocation and resulting prison sentence are affirmed. FACTS AND PROCEDURAL HISTORY 1 ¶2 In 2006, Dawson pled guilty to theft of means of transportation, a Class 3 felony, and was placed on probation for three years. Later in 2006, Dawson was alleged to have violated his probation by committing a separate felony offense in CR2006-163741-001DT. In 2007, the court found Dawson violated his probation and reinstated Dawson on probation for a period of five years beginning with his discharge from prison for the separate felony offense. In March 2011, Dawson was again found to have violated his probation and reinstated on probation, with a revised probation expiration date of April 16, 2012, and incarcerated for seven months as a condition of probation. ¶3 Dawson received and signed his new probation conditions, in which Dawson agreed to, among other things, (1) participate assistance and cooperate pertaining to in any substance program abuse as of counseling directed by or the Adult Probation Department (APD); (2) not possess or use illegal drugs or controlled substances and submit to drug and alcohol 1 This court views the facts in the light most favorable to sustaining the trial court s judgment and resolves all reasonable inferences against Dawson. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). 2 testing as directed by the APD; and (3) abide by the terms of intensive probation, residence, adhering probation schedule including to a and remaining written, obtaining at his place agreed-upon prior of intensive permission from APD before leaving his residence or deviating from his schedule. ¶4 On April 2, 2012, Probation Officer Preston filed a petition to revoke probation, alleging Dawson possessed or used methamphetamine, cocaine and marijuana on various occasions over the prior six months. The petition also alleged Dawson missed 11 drug tests during this time, did not participate or cooperate in his substance abuse treatment and failed to follow his intensive probation schedule 24 times. Dawson denied these allegations at his probation revocation arraignment and a witness violation hearing was set. Dawson was present and represented by counsel at his revocation arraignment and witness violation hearing. ¶5 At the witness violation hearing, Probation Officer Preston testified Dawson failed to enter his substance abuse treatment program; tested positive for cocaine, marijuana and amphetamines marijuana multiple and times; methamphetamine admitted multiple to using times; and cocaine, failed to comply with his intensive probation schedule. The State also properly offered into evidence three admissions of drug use, each signed by Dawson. Probation examined by Dawson s counsel. 3 Officer Preston was cross- ¶6 The superior court found the State proved by a preponderance of the evidence that Dawson had violated various conditions of his probation by using illegal drugs, failing to participate in substance abuse treatment and failing to follow his intensive Dawson s probation mitigating term of probation and, circumstances, 3.5 schedule. years after The superior considering sentenced Dawson incarceration, with court revoked aggravating to the credit and presumptive for 271 days served. ¶7 Dawson timely appealed the revocation of probation and resulting sentence. This court has jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 134031 and -4033(A). 2 DISCUSSION ¶8 Counsel for Dawson advised this court that after a diligent search question of of law. the This entire court record, reviews he found Dawson s no arguable sentence for fundamental error, an error that is clear and egregious. State v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991). A review of counsel s brief and a full review of the record reveals no reversible error. See Leon, 104 Ariz. at 300, 451 P.2d at 881. The proceedings were conducted in compliance with 2 Absent material revisions after the relevant dates, statutes cited refer to the current version unless otherwise indicated. 4 the Arizona Rules of Criminal Procedure, Dawson was present and represented by counsel at all stages of the proceedings and the sentence imposed was within the statutory limits with proper credit given for presentence time served. Dawson s probation revocation and resulting sentence are therefore affirmed. ¶9 Upon the filing of this decision, defense counsel is directed to inform Dawson of the status of his appeal and of his future unless, options. upon Defense review, counsel counsel has finds an no further issue obligations appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 15657 (1984). Dawson shall have 30 days from the date of this decision to proceed, if he desires, with a pro se motion for reconsideration or petition for review. CONCLUSION ¶10 Dawson s probation revocation and resulting sentence are affirmed. /S/_ SAMUEL A. THUMMA, Judge CONCURRING: /S/_ PHILIP HALL, Presiding Judge /S/_ PETER B. SWANN, Judge 5 prison

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